In this interlocutory appeal involving a claim that the defendant, Ben
Jarvison, is not validly married, the United States contests the district court's
exclusion of testimony on the basis of the spousal testimonial privilege. As part
of the underlying child sexual abuse prosecution, the United States sought to
compel the testimony of Esther Jarvison who they contend observed the abuse
and could testify as to statements concerning the abuse made to her by both the
defendant Ben Jarvison and the alleged victim. After determining that the
Jarvisons had a valid marriage, the district court denied the government's motion
to compel Esther's testimony. On appeal, the government argues that the district
court erred in refusing to compel Esther's testimony on the basis of the spousal
testimonial privilege, and in the alternative invites us to create a new exception
to the spousal testimonial privilege for child abuse cases. Exercising jurisdiction
under 18 U.S.C. § 3731, we AFFIRM the district court's order denying
the
government's motion to compel Esther Jarvison's testimony and decline the
government's invitation to create a new exception allowing courts to compel
adverse spousal testimony in cases involving allegations of child abuse.

I

This appeal centers around Esther Jarvison's ("Esther") refusal to testify
against Ben Jarvison ("Jarvison") in a criminal case in which Jarvison is accused
of sexually abusing their granddaughter, Jane Doe. After the government
indicted Jarvison for aggravated sexual abuse of a minor child in Indian Country,
it attempted to compel Esther to testify against Jarvison. Esther, an 85-year-old
Navajo woman who speaks quite limited English, and Jarvison, who is 77 years
old, are residents of the Navajo Indian Reservation and enrolled members of the
Navajo Tribe. Jarvison also speaks only limited English, and communicates
mostly in Navajo. The testimony proffered by the government involves
statements allegedly made by Esther to Federal Bureau of Investigation ("FBI")
and Navajo Police investigators in an untaped, English-language interview. The
government contends that Esther stated that she observed the child touch
Jarvison's penis "over his pants," that Jane Doe allegedly told Esther that
Jarvison had touched her private parts, and that Jarvison told Esther that the child
had touched him over the crotch of his pants and he had told her not to do so.(1)
Esther denies that she made such statements.

As part of its pretrial preparations, the government served Esther with a
subpoena to compel testimony two days before a pretrial hearing in this case.
During the hearing, Esther emphatically stated that she did not want to testify
against her husband and that she and Jarvison had married in a traditional Navajo
ceremony in Coyote Canyon within the Navajo Reservation on June 25, 1953.
The district court found that the Jarvisons had a valid marriage based on this
1953 traditional Navajo ceremony, and concluded that the spousal testimonial
privilege applied under Trammel v. United States, 445 U.S. 40 (1980).

Before the district court, the government argued that the marriage was not
valid because: (1) Esther had not testified to every element of a "traditional
ceremony" under the Navajo Code; (2) the Jarvisons had not recorded the
traditional marriage with the Navajo tribal government; and (3) an intervening
relationship with Esther's daughter had extinguished any marriage. The
government's proffer included proposed evidence that the Jarvisons lived
together from 1953 until 1965, at which point Esther moved out upon Jarvison's
commencement of a sexual relationship with Esther's daughter from a prior
marriage. Jarvison had two children with Esther prior to 1965, and four children
with the daughter over the next fifteen years. In 1980, the relationship with the
daughter ended, and Esther moved back in with Jarvison. Over the ensuing
years, Esther and Jarvison separated and reconciled multiple times, and in 2000
began to live together again on a full-time basis. The documents submitted by
the government reflect that in 2002, when the alleged sexual abuse occurred,
Esther was living with Jarvison and was still cohabiting with him in 2003 when
interviewed by the FBI and Navajo Police about the alleged abuse. These FBI
statements relied upon by the government state that "[Esther] JARVISON and
BEN have been married for over 50 years."

The court allowed the government to present a witness from the Navajo
Vital Records Office to testify to certain records on Jarvison maintained by the
Navajo Nation that stated "no" in the block marked "married," but did list Esther
as Jarvison's "wife." These documents also listed all of Jarvison's children as
Esther and Jarvison's. After the court denied its motion to compel Esther's
testimony on the basis of the existence of a valid marriage and the spousal
testimonial privilege under Trammel, the government requested reconsideration
and moved to supplement the record with additional documentary evidence to
show that no valid marriage had ever occurred. These two exhibits consisted of
the two investigatory reports made in 2003. The court admitted the documents
but found they contained nothing that would cause it to reexamine its conclusion
that the Jarvisons were married and that spousal testimonial privilege applied.(2)This interlocutory appeal by the government followed.

II

When reviewing a district court decision to exclude evidence, we review
the district court's decision for an abuse of discretion. United States v.
Wittgenstein, 163 F.3d 1164, 1172 (10th Cir. 1998). Although we review legal
issues de novo, United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir. 1990), we
must accept the court's factual findings unless we conclude they were clearly
erroneous. Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998). A
finding of fact is not clearly erroneous unless "it is without factual support in the
record," or unless the court "after reviewing all the evidence, is left with a
definite and firm conviction that the district court erred." Id. We view the
evidence on appeal in the light most favorable to the district court's ruling,
giving due regard to the district court's opportunity to judge witness credibility,
and must uphold any district court finding that is permissible in light of the
evidence. Id. at 813.

The United States contends that the district court erred in determining that
the Jarvisons were married under traditional Navajo law, and that even if
married, the marriage was a sham or moribund and was created solely to avoid
testifying. The second argument ­ that the marriage was a sham or moribund and
was created solely to avoid testifying ­ was not raised or argued below before the
district court in either the government's original motion or motion to reconsider.
Accordingly, we decline to address it for the first time on appeal. SeeSingleton
v. Wulff, 428 U.S. 106, 120 (1976); In re Walker, 959 F.2d 894, 896 (10th Cir.
1992).(3)

A

Our analysis of the district court's conclusion that the Jarvisons had a valid
marriage requires us first to examine what law would apply to the question of a
marriage between two Navajo tribal members who live completely within the
boundaries of the Navajo Reservation. The district court implicitly evaluated the
marriage under Navajo law stating that: "The Court is of the opinion that a
marriage legal in the Navajo Nation 50 years ago is still legal." It is often
assumed without discussion by courts that, in cases arising on an Indian
Reservation within a State, the substantive law of the State is controlling in such
situations. Louis v. United States, 54 F.Supp. 2d 1207, 1209-10 (D.N.M. 1999).
However, because the Navajo Nation retains sovereign authority to regulate
domestic relations laws, including marriage of its Indian subjects, Navajo law is
dispositive as to the validity of the marriage in question. SeeMontana v. United
States, 450 U.S. 544, 564 (1981) ("Indian tribes retain their inherent power to
determine tribal membership, to regulate domestic relations among members, and
to prescribe rules of inheritance for members"); Santa Clara Pueblo v. Martinez,
436 U.S. 49, 55-56 (1978) ("Although no longer possessed of the full attributes
of sovereignty, they remain a separate people, with the power of regulating their
internal and social relations."); Cheromiah v. United States, 55 F.Supp. 2d 1295,
1305 (D.N.M. 1999) (examining the sovereignty retained by Indian tribes and law
of the place in Federal Torts Claims Act case); Jim v. CIT Financial Services
Corp., 533 P.2d 751, 752 (N.M. 1975) (recognizing that laws of the Navajo Tribe
are entitled by Federal law to full faith and credit in the courts of New Mexico
because the Navajo Nation is a "territory" within the meaning of 28 U.S.C. §
1738); Halwood v. Cowboy Auto Sales, Inc., 946 P.2d 1088, 1090 (N.M. App.
1997) (same). The government assumes that New Mexico law is the applicable
law by which to measure the validity of the marriage, but discusses Navajo law
because New Mexico recognizes valid common law marriages from other
jurisdictions.

Both Esther and Ben Jarvison are subject to Navajo Nation laws regarding
marriage and domestic relations. Because domestic relations are considered by
the Tribe as being at the core of Navajo sovereignty, In re Francisco, 16 Indian L.
Rep. 6113 (Navajo 1989),(4) we conclude that
Navajo law is the appropriate law
under which to evaluate the validity of the marriage. SeeMontana, 450 U.S. at
565; Marris v. Sockey, 170 F.2d 599 (10th Cir. 1948) (holding that tribal Indians
domiciled within the territorial limits of an Indian nation in Indian Territory and
who consummated a marriage or divorce in accordance with recognized tribal
custom before such customs had been superceded by other law, were bound by
the legal effect given to such customs); see alsoBeller v. United States, 221
F.R.D. 679 (D.N.M. 2003) (determining validity of a Navajo couple's marriage
by examining required elements of common law marriage under Navajo law).

B

Navajo law currently recognizes multiple ways to establish a valid
marriage. It recognizes both those marriages contracted outside the Navajo
Reservation (if valid by the laws of the place where contracted), and those within
the Reservation under the requirements of Title 9 of the Navajo Nation Code.
Navajo Code recognizes both traditional and common law marriage. Navajo
Code tit. 9, §§ 3 and 4 (1993).(5)
Because the alleged marriage in this case spans
more than a fifty-year period, a proper understanding of the evolution of Navajo
law on traditional and common-law marriage is required to resolve the validity of
the Jarvisons' marriage.

Under Navajo tradition, celebration of a traditional marriage ceremony and
the knowledge thereof by the community were sufficient to create a valid
marriage. A marriage license or other documentation was unnecessary. SeeIn re
Francisco, 16 Indian L. Rep. 6113 ("After [participating] in the traditional
Navajo wedding ceremony, some couples do not obtain marriage licenses
because, traditionally, the performance of the ceremony completely validates the
union."); seealso Antoinette Sedillo Lopez, Evolving Indigenous Law:
Navajo
Marriage-Cultural Traditions and Modern Challenges, 17 Ariz. J. Int'l & Comp.
L. 283, 292 (2000). Navajo marriages have been governed by tribal statute since
1940 when the Tribal Council passed a Resolution requiring Navajo couples
desiring to marry in a traditional ceremony to obtain a marriage license. See
Lopez, supra at 293; Navajo Tribal Council Res. CJ-2-40 (June 3, 1940)
(recognizing that the overwhelming number of Navajo who have not been to
school are married by tribal custom). Despite the seemingly clear language in
this Resolution, subsequent Navajo court decisions interpreted the Resolution as
making the license requirement "directory" rather than mandatory, and court
decisions and subsequent Tribal Council Resolutions recognized the validity of
both unlicensed traditional and common law marriages. This apparent conflict
between the desire to formalize marriage by requiring a license and the desire to
respect tribal custom and belief concerning traditional marriage(6) reflects the
tension between the necessity of proving marriage in the modern bureaucratic
state,(7) and Navajo law's commitment to
incorporate Navajo tradition as a source
of law. SeeBennett v. Navajo Board of Election Supervisors, No. A-CV-26-90
(Navajo 1990) (holding that fundamental Navajo customs and traditions are part
of "higher law");(8) Navajo Tribal Council
Res. CAP-36-80 (Apr. 30, 1980)
(recognizing difficulty in obtaining government benefits caused by inability to
validate traditional marriages).

In 1944 the Tribal Council validated preexisting marriages recognized by
the community even though not accompanied by church, state, or Tribal custom
ceremony. See Unnumbered Navajo Tribal Council Res. amending CJ-2-40 (July
18, 1944); In re Francisco, 16 Indian Law Rep. 6113; seealso Navajo
Code, tit. 9
§ 8 (the 1944 amendment was the precursor to the current §8). Recognizing that
Navajo couples had continued to marry through unlicensed traditional
ceremonies, in 1954 the Tribal Council adopted a resolution validating all pre-January 31, 1954
Navajo marriages that were out of compliance with earlier
Navajo Tribal Council resolutions requiring a license. David L. Lowery,
Developing a Tribal Common Law Jurisprudence: The Navajo Experience, 1969-1992,
18 Am. Indian L. Rev. 379, 405 (1993); In re Francisco, 16 Indian L. Rep.
6113; Navajo Tribal Council Res. CF-2-54 (Feb. 11, 1954) ((codified at Navajo
Code tit. 9, § 61, (1977), amended by Navajo Tribal Council Res. CAP-36-80
(Apr. 30, 1980)). In 1957, the Tribal Council, recognizing the frequent necessity
of documentary proof of marriage, established a procedure allowing those whose
prior marriages were validated by the 1954 resolution, to petition for a formal
recognition of marriage through the Navajo courts. Navajo Tribal Council Res.
CF-14-57 (Feb. 4, 1957). Although the 1954 resolution requiring marriage
licenses was passed to avoid problems in obtaining government benefits for
dependents by encouraging tribal members to obtain marriage licenses, Navajo
courts subsequently validated "customary" marriages that occurred after the
January 31, 1954 date as "common law" marriages, thus achieving the same
result. See Lowery, supra at 405; In re Marriage of Daw, 1 Navajo
Rptr. 1, 3
(Navajo Ct. App. 1969).(9) Ten years later, the
Navajo courts acknowledging the
language of the 1954 Tribal Council Resolution again held that "any marriage
contracted by tribal custom after January 31, 1954, may not be validated by the
tribal court, but is recognized as a common law marriage." In re Marriage of
Ketchum, 2 Navajo Rptr. 102, 105 (Navajo Ct. App. 1979).(10) The court's In re
Ketchum opinion listed the requirements of a common law marriage as: (1)
present consent to be husband and wife; (2) actual cohabitation; and (3) actual
holding out to the community to be married. Lowery, supra at 405-06; In re
Ketchum, 2 Navajo Rptr. 102, 104-105 citingKelly v. Metropolitan Life Ins.
Co.,
352 F.Supp. 270 (S.D.N.Y. 1972) (listing essential features of common law
marriage), and Meister v. Moore, 96 U.S. 76 (1878) (deciding that common law
marriage exists absent a statute to the contrary).

In 1980, the Tribal Council eliminated the January 31, 1954 cutoff date for
the validation of traditional Navajo marriages that had been entered into without
licenses, recognizing both that the Navajo people had continued to marry in
traditional ceremonies since 1954 and that the "law of validated marriages has
created problems and hardships for numerous married Navajo people." Lopez,
supra at 296; Navajo Tribal Res. CAP-36-80 (Apr. 30, 1980). However, in an
effort to encourage the move toward formalization and to ease the problem of
accurate record keeping, the Tribal Council urged the Navajo people to obtain
Navajo Tribal marriage licenses prior to marriage and record them within three
months. By eliminating the cutoff date, the Council allowed all traditional
marriages to be validated, extending federal benefits normally afforded to
married couples to those Navajo couples "who were recognized in the community
as being married and who considered themselves spiritually united in accordance
with Navajo cultural and religious tradition." Lopez, supra at 296 (citing Navajo
Tribal Council Res. CAP 36-80 (Apr. 30, 1980)).

Although the Supreme Court of the Navajo Nation confirmed the
institution of common law marriage in a 1988 decision, Navajo Nation v.
Murphy, 6 Navajo Rptr. 10,(11) in 1989
it ruled that "Navajo tradition and culture
do not recognize common-law marriage," and overruled all prior rulings
permitting Navajo courts to validate unlicensed marriages in which a Navajo
traditional ceremony had not occurred. Lowery, supra at 406; In re Marriage of
Francisco, 16 Indian L. Rep. 6113 (Navajo 1989). While declaring "Anglo-style"
common law marriages invalid as contrary to Navajo tradition in In re Francisco,
the Navajo Supreme Court reaffirmed its responsibility under CAP 36-80 to
validate unlicensed marriages consecrated with a traditional ceremony. Lowery,
supra at 406; In re Francisco, 16 Indian L. Rep. 6113; Lopez, supra at
299. In
1993, the Tribal Council rejected the Navajo Supreme Court's holding in In re
Francisco invalidating common law marriages and explicitly included common
law marriages in the Navajo Code. Navajo Nation Code, tit. 9, sec. 3 (1993);
Lopez, supra at 299.

Current Navajo law allows parties to contract marriage through a
traditional ceremony or by common-law marriage within the Navajo Nation as
follows:

D. The contracting parties engage in a traditional Navajo wedding
ceremony which shall have substantially the following features:

1. The parties to the proposed marriage shall have met and
agreed to marry;

2. The parents of the man shall ask the parents of the woman
for her hand in marriage;

3. The bride and bridegroom eat cornmeal mush out of a
sacred basket;

4. Those assembled at the ceremony give advice for a happy
marriage to the bride and groom;

5. Gifts may or may not be exchanged;

6. The person officiating or conducting the traditional
wedding ceremony shall be authorized to sign the marriage
license, or

E. The contracting parties establish a common-law marriage, having
the following features:

1. Present intention of the parties to be husband and
wife;

2. Present consent between the parties to be husband
and wife;

3. Actual cohabitation;

4. Actual holding out of the parties within their
community to be married.

Navajo Code, tit. 9 § 3. Against this checkered statutory and historical
background we assess the district court's determination in this case.

C

Although later conceding that New Mexico recognizes valid common law
marriages from other jurisdictions, the government initially contends that the
district court erred when it determined that a valid marriage existed between the
Jarvisons because New Mexico law does not recognize common law marriage.
We reject the government's first argument for the reasons stated above.
Additionally, the government contends that there was insufficient evidence to
support the district court's conclusion that the Jarvisons had a traditional
ceremonial marriage under the Navajo Code. Moreover, because the Jarvisons
had not completed the procedure under Navajo law to validate a traditional or
common law marriage, the government argues that their marriage was invalid.

In evaluating the government's contentions, we observe that the district
court could have produced a more robust order detailing its findings of fact and
evidentiary basis similar to the detailed findings of fact and conclusions of law in
Beller v. United States, 221 F.R.D. 679 (D.N.M. 2003). Nonetheless, on our
review of the record, we conclude that the evidence in the record is sufficient to
establish a valid marriage between the Jarvisons. SeeUnited States v.
Taylor, 97
F.3d 1360, 1364 (10th Cir.1996) (holding that despite a trial court's failure to
make specific factual findings, an appellate court is free to affirm on any grounds
for which there is sufficient record to permit conclusions of law).

In this case, Esther testified to having married Jarvison in a traditional
Navajo ceremony on June 25, 1953 at Coyote Canyon within the Navajo
Reservation. She identified the particular Navajo medicine man who performed
the ceremony. She answered yes when the court asked her "[is] that a traditional
marriage under Navajo law?" Although the government makes much of the fact
that Esther did not testify to the exact requirements outlined in the Navajo Code
provision, the statute itself requires only that the couple "engage in a traditional
Navajo wedding ceremony which shall have substantially the following features

Review of the government's evidence of record further supports the
conclusion that the Jarvisons' ceremony would be considered valid under Navajo
law. In explaining the Navajo Nation records concerning the Jarvisons, Ms.
Gertrude Peshlakai, a statistics technician from the Navajo Nation, testified that
the Tribe recognized the marriages of many of the elderly Navajos who were
married in traditional ceremonies in the forties and fifties who often did not have
their marriages validated by the Tribe either as a traditional ceremony or as a
common-law marriage. Although recognizing the internal inconsistencies on the
Navajo Records,(12) Peshlakai testified that
the census records indicated to her that
"the individual might have had a traditional wedding." Her answers to somewhat
tortured questions by counsel are relevant to our evaluation:

Question by defense counsel: "Okay, And what would that
mean, then, in terms at least the tribe recognizing that term of
wife in the context of whether or not there's a real marriage,
in a traditional sense? What does that mean to me?"

Peshlakai: "That means they had a traditional wedding."

Defense Counsel: "And does ­ you used the term 'elderlies'
before. But was it prevalent in the forties and fifties that on
occasion people who were married in a traditional sense on the
Navajo Reservation did not obtain what you call the
paperwork to actually get a marriage license like it's done
now?"

Thus, testimony from the government's witness establishes that the Tribe does
recognize "elderlies," such as Esther and Ben Jarvison, as married even if the
marriage is not validated or licensed.

The Jarvisons' failure to license or validate their 1953 traditional marriage
does not result in their marriage being invalid under Navajo law. As noted
above, the 1954 Navajo Tribal Council Resolution explicitly validated unlicensed
traditional marriages performed prior to 1954. Navajo Tribal Council Res. CF-2-54, Feb. 11,
1954.

Additionally, Navajo law requires that a traditional tribal marriage must be
terminated by formal divorce even if the marriage is not recorded or validated.
SeeIn the Matter of Validation of Marriage of Slowman, 1 Navajo Rptr. 142
(Navajo Ct. App. 1977);(13)In the
Matter of Documenting the Marriage of Slim, 3
Navajo Rptr. 218 (Crownpoint D. Ct. 1982);(14)seealso Navajo Code, tit. 9 § 407
(1993) ("No person, married by Tribal custom, who claims to have been divorced
shall be free to remarry until a certificate of divorce as been issued by the Courts
of the Navajo Nation."); Tribal Council Resolution CJ-3-40, July 18, 1944. To
the extent that the government claims that the relationship with Esther's daughter
constituted a common-law marriage extinguishing Ben and Esther's traditional
marriage, the lack of a divorce ending the original 1953 marriage defeats this
argument.

Taken as a whole, the Navajo Domestic Code takes care to maintain the
validity of prior marriages that would not necessarily meet current code
requirements for marriage.(15) In addition
to longstanding Navajo common law
and current Navajo Code recognizing unlicensed or unvalidated traditional
marriages performed at times when licenses were ostensibly required,(16) current
Navajo law does not necessarily require a license.(17) Thus, the government's
contention that the Jarvisons' marriage is invalid because they did not have their
marriage validated or licensed fails under Navajo law. Despite the district
court's failure to make specific findings of fact underpinning its determination of
a valid marriage, sufficient evidence is in the record validating the Jarvisons'
marriage for the purposes of the spousal testimonial privilege.

The government also conceded at oral argument, to our mind, properly so,
that if the case were remanded to the district court, the Jarvisons could establish
the elements of common law marriage. The government's own proffer in its
motion for reconsideration establishes that Esther and Jarvison were cohabiting
from 1953 to 1980, and again from 2000 onwards, including the date of the
alleged abuse in 2002 and the criminal investigation in 2003. The vital records
and investigative reports produced by the government show that Esther and
Jarvison held themselves out as husband and wife, and Esther Jarvison testified
under oath that she was Jarvison's wife. Although it is true that the burden of
establishing the applicability of a privilege is on the party seeking to assert it,
Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995), we conclude
that standard was met here.

III

The government invites us to create a new exception to the spousal
testimonial privilege akin to that we recognized in United States v. Bahe, 128
F.3d 1440 (10th Cir. 1997). In Bahe, we recognized an exception to the marital
communications privilege for voluntary spousal testimony relating to child abuse
within the household. Federal courts recognize two marital privileges: the first
is the testimonial privilege which permits one spouse to decline to testify against
the other during marriage; the second is the marital confidential communications
privilege, which either spouse may assert to prevent the other from testifying to
confidential communications made during marriage. SeeTrammel, 445 U.S. at
44-46; Bahe, 128 F.3d at 1442; seealsoJaffee v. Redmond,
518 U.S. 1, 11
(1996) (recognizing justification of marital testimonial privilege as modified by
Trammel because it "furthers the important public interest in marital harmony).
In order to accept the government's invitation, we would be required not only to
create an exception to the spousal testimonial privilege in cases of child abuse,
but also to create an exception ­ not currently recognized by any federal court ­
allowing a court to compel adverse spousal testimony.

The district court in this case held that Esther and Ben Jarvison "have a
valid marriage and that Esther Jarvison wishes to invoke the privilege against
adverse spousal testimony, pursuant to Trammel v. United States, 445 U.S. 40
(1980)." The Court in Trammel specifically held that "the witness-spouse alone
has a privilege to refuse to testify adversely; the witness may be neither
compelled to testify nor foreclosed from testifying." Trammel, 445 U.S. at 53;
Bahe, 128 F.3d at 1442. Although the "Federal Rules of Evidence acknowledge
the authority of the federal courts to continue the evolutionary development of
testimonial privileges in federal criminal trials governed by the principles of the
common law as they may be interpreted . . . in the light of reason and
experience," Trammel, 445 U.S. at 47(internal citations and quotations omitted),
we do not consider this to be the appropriate case to examine whether the holding
in Trammel can or should be reexamined. Accordingly, we reject the
government's request to create an new exception, and AFFIRM.

No. 04-2093, United States v. Jarvison

ANDERSON, Circuit Judge, dissenting:

The majority opinion holds that the district court correctly found that
Esther had met her burden to prove entitlement to the spousal testimony
privilege. Because I believe that the majority fails to actually put Esther to that
burden, fails to acknowledge that the district court crippled the government in its
effort to counter that burden by refusing to permit the government to cross-examine Esther, and
minimizes the significance of Jarvison's lengthy relationship
with Esther's daughter, I respectfully dissent.

The majority acknowledges that the person seeking to assert an evidentiary
privilege bears the burden of establishing its applicability. Motley v. Marathon
Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995). However, the sum total of the
relevant testimony presented by Esther, the person invoking the spousal
testimony privilege in the face of the government's motion to compel that
testimony, was as follows:

THE COURT: Okay. When were you married?

THE WITNESS: June 25 ­ where?

THE COURT: No. When?

THE WITNESS: June 25, 1953.

THE COURT: Okay. And where were you married?

THE WITNESS: Coyote Canyon.

THE COURT: Is that on the Navajo Reservation?

THE WITNESS: Navajo Reservation.

THE COURT: By whom were you married?

THE WITNESS: Oh, a person, John Venson.

THE COURT: Is he a Navajo medicine man?

THE WITNESS: Yes.

THE COURT: Okay. Is that a traditional marriage under Navajo
law?

THE WITNESS: Yes.

Appellant's App. at 87-90. The court then declared "Okay. That's good enough
for me." Id. at 90. When the government sought to cross-examine Esther, the
court responded, "No, I've heard enough. I'm not going to intrude any further on
her marriage." Id. The one witness the government was permitted to introduce
was unable to confirm the Navajo Tribe's view of the existence and validity of
the purported marriage of Esther and Jarvison, although the district court
essentially disregarded the witness's view in any event:

[I]t doesn't make any difference, in my judgment, under this kind of
procedure whether the tribe thinks they're married or not. If they
think they are married, and they thought they were married by a
tribal medicine man, and nobody made a record of it, that doesn't
mean that they're not married.

Id. at 95.

Thus, the district court held that Esther had carried her burden of proving
entitlement to the spousal privilege because she simply stated she had been
married in a Navajo traditional ceremony, although no documentary evidence
clearly supported the existence and validity of that marriage. The majority
attempts to bolster Esther's otherwise bare-bones testimony by claiming that the
evidence need only show "substantial" compliance with the requirements under
the Navajo Code for a valid traditional marriage. But Esther's testimony hardly
shows even a substantial compliance--all she stated was that she had been
married by a man she said was a Navajo medicine man and that she believed it
was a traditional ceremony. Not a shred of evidence was presented with respect
to the remaining requirements of Navajo Code, tit. 9, § 3 for establishing the
performance of a traditional Navajo wedding ceremony.

Furthermore, the district court severely handicapped the government in its
effort to rebut her assertion of the existence of a valid marriage when it refused
to let the government cross-examine Esther. The majority concedes that "the
district court should have allowed the Government to cross-examine Esther on
her claim of marriage" but then states that "its failure to do so must be evaluated
for prejudice after considering the totality of the evidence presented on the
marriage." Maj. Op. at 5-6, n.2. While the majority notes that the government
was afforded the opportunity to present a witness whose testimony was, quite
simply, inconclusive on whether there was a valid marriage between Esther and
Jarvison, and to present a proffer of what they believed Esther's testimony would
establish, the government was not afforded the opportunity to test Esther's
credibility. Since the district court had already put everyone on notice that
Esther's testimony would be crucial, it was clearly prejudicial to prohibit the
government from cross-examining her in order to probe her credibility.

Finally, I disagree with the majority's conclusion that the totality of the
evidence presented concerning the existence of a valid marriage suffices to
establish that the marriage existed. The majority summarily dismisses the fact
that, after cohabiting with Esther for some twelve years, Jarvison then left Esther,
began cohabiting with Esther's daughter from a previous marriage, and had four
children with the daughter over a fifteen-year span of cohabitation. Esther and
Jarvison's "reunion" following that lengthy relationship between Jarvison and
Esther's daughter has been sporadic, at best. The majority concludes that "the
lack of a divorce ending the original 1953 marriage defeats th[e] argument" that
the relationship with Esther's daughter constituted a common-law marriage which
extinguished any prior marriage. Maj. Op. at 20. This could lead to absurd
results--an allegedly valid marriage of short duration could be followed by a
thirty-year common law marriage, yet the spouse from the first marriage could
claim a spousal testimonial privilege while the common-law spouse from the
second relationship could not. The majority is willing to overlook the need for
formalities, records, and documents when it comes to determining the creation of
a marriage but strictly enforces such requirements when it comes to terminating a
marriage. That fails to take account of the realities of this case. I therefore
respectfully dissent.

FOOTNOTESClick footnote number to return to corresponding location in the text.

1. At the time of the hearing, Jane Doe's
father was also being investigated for
raping Jane Doe. This alleged crime, however, occurred outside the jurisdiction
of the United States and was pending prosecutorial decision in the Eleventh
Judicial District Attorney's Office in Gallup, New Mexico. The existence of this
additional abuse allegation is relevant, however, in the current prosecution as it
could potentially provide Jarvison's defense with an explanation for the sexual
knowledge of the minor victim.

2. The government contends that the district
court's denial of the opportunity
to cross examine Esther on her marriage was prejudicial. Unless we are
convinced that the ruling of the court was prejudicial, the trial court is the
governor of the trial with the duty to assure its proper conduct and the limits of
cross-examination necessarily lie within its discretion. SeeUnited States v.
Begay, 144 F.3d 1336, 1339 (10th Cir. 1998) (review of limitations on cross-examination of
witnesses for abuse of discretion); United States v. Jackson, 482
F.2d 1167 (10th Cir. 1973) (exercise of discretion on extent of cross-examination
should not be overruled unless we are convinced the court's ruling is prejudicial).
Although the district court should have allowed the Government to cross-examine
Esther on her claim of marriage, its failure to do so must be evaluated for
prejudice after considering the totality of the evidence presented on the marriage.
In addition to allowing the government to present a witness and records from the
Navajo Vital Records Office, the district court allowed the government to present
a proffer of what they believed the evidence would show, as well as allowing the
government to supplement the record in its motion for reconsideration. Although
the court itself conducted the examination of Esther and limited the cross
examination due to the witness's age and frailty, it provided the government with
a full opportunity to call other witnesses and to present a proffer of what they
believed Esther's testimony would establish. After evaluating the record, we are
not convinced that the court's ruling under these circumstances was prejudicial.

3. The government's own evidence directly
contradicts this argument. In the
government's supplement to the record on its motion to reconsider, allowed by
the district court, the FBI statement concerning Esther's interview on April 25,
2003 reflects that long before any indication of a criminal prosecution, Esther told
the investigating agent that she and the defendant had been "married for over 50
years" and further in its motion for reconsideration, the government stated that
Esther had been living with Jarvison since 2000. Even presuming the facts
adduced by the government as true, the government makes no showing that would
support a conclusion that the marriage was either a sham or moribund.

NANN.0000013.htm (as visited on May 3, 2005, and available in the Clerk of
Court's case file).

5. Navaho Code (NNC) tit. 9, § 1,
provides: "Validity generally. A. Marriages
contracted outside of Navajo Indian Country are valid within Navajo Indian
Country if valid by the laws of the place where contracted. B. Marriages may be
contracted within Navajo Indian Country by meeting the requirements of 9 NNC
§§ 3 and 4."

6. "Traditional Navajo society places great
importance upon the institution of
marriage. A traditional Navajo marriage, when consummated according to a
prescribed elaborate ritual, is believed to be blessed by the 'Holy People.' This
blessing ensures that the marriage will be stable, in harmony, and perpetual."
Navajo Nation v. Murphy, 6 Navajo Rptr. 10, 13 (Navajo 1988). Also available
at: http://www.tribalresourcecenter.org/opinions/
a>opfolder/1988.NANN.

7. The Navajo inclusion of a license
requirement was established in response to
difficulties experienced by tribal members attempting to establish rights to
government pensions and survivor's benefits under Social Security and other
compensation programs. See Navajo Tribal Council Res. CAP-36-80 (Apr. 30,
1980).

NANN.0000007.htm (as visited on May 3, 2005, and available in the Clerk
of Court's case file).

11. In Murphy, the court
recognized that marriage was an important aspect of
Navajo culture and that the legal doctrine of spousal privilege was justified by
Navajo society's interest in preserving the harmony and sanctity of marriage.
Murphy, 6 Navajo Rptr. at 13. Also available at: http://www.tribalresourcecenter.org/
opinions/opfolder/1988.NANN.0000001.htm (as visited on May 3, 2005,
and available in the Clerk of Court's case file).

12. The record listed "Esther Jarvison" as
"Jarvison's wife" but did not list any
information as to the date or type of marriage. Although the court recognized that
other inaccuracies existed on the record, such as listing all of Jarvison's children
as those of Esther and Jarvison when some were those of Jarvison and Esther's
daughter, it held that merely because an official record did not conclusively
establish their "marriage," it did not mean that they were not married under
Navajo tradition and law. Because Navajo society is matrilocal and
matrilineal,
traditionally, the father and children live with the mother's family, children are
said to "belong" to the mother's clan. SeeApache v. Republic National Life
Insurance Co., 3 Nav. Rptr. 250, 252 (1982). Also available at:
http://www.tribalresourcecenter.or
g/opinions/opfolder/1982.NANN.0000059.htm (as visited on May 3, 2005, and
available in the Clerk of Court's case file).

(as visited on May 3, 2005, and available in the Clerk of Court's
case file).

15. For example, in § 4 of the
NNC, which detail the requirements to marry
generally, both portion of the Navajo Code requiring that Navajo Nation members
who wish to marry may not be from the same maternal clan or biological paternal
clan, or may not be related within the third degree of affinity within certain clans
specifically state that "the provisions of this subsection shall not affect the
validity of any marriages legally contracted and validated under prior law."
Navajo Code, tit. 9, § 4(D) and (E).

16. Even within the portion of the Navajo
Nation Code dealing with validation
of marriages and granting jurisdiction to the Family Courts of the Navajo Nation
and to the Peacemaker Courts, upon referral from the Family Courts, states that
"[m]arriages need not be solemnized by church, state, or Navajo custom ceremony
to be recognized as valid under § 3(D) of this part." Navajo Code, tit. 9, § 8
(§
3(D) deals with traditional Navajo marriage).

17. "Licenses are not required in order to
establish a marriage under the
provisions of this part," Navajo Code, tit. 9, § 5(A), and failure to return the
license to the Navajo Office of Vital Records within 30 days "shall not affect the
validity of any marriage." Navajo Code, tit. 9, § 7B.